Is the Government All Fired Up About Charging Individuals?April 11, 2019
We have long posted about the government’s threats to hold individuals liable for actions taken on behalf of their companies, for example here, but these actions remain rare and typically are reserved for egregious, repeated, and intentional criminality. A recent indictment against two former executives, however, may signal the government is making good on its threat even when the conduct (at first glance) involves mundane recordkeeping or reporting obligations.
The U.S. Consumer Product Safety Commission (CPSC) has long had the authority to bring criminal charges for knowing or willful violations of the Consumer Product Safety Act (CPSA). Indeed, the government has used this power to charge parties for things like repeated importation of banned consumer products into the United States. But the CPSC has never used its criminal authority to charge individuals for failing to report information to CPSC about potentially defective products. Until recently.
On March 28, the government filed an indictment against Simon Chu, the Chief Administrative Officer, and Charley Loh, the Chief Executive Officer, of “unindicted co-conspirator” companies that sold dehumidifiers to US consumers. According to the indictment, as early as September 2012, Chu, Loh, and their companies received multiple reports that their Chinese dehumidifiers were defective, dangerous, and could catch fire. The defendants then conducted testing that confirmed that these dehumidifiers could pose safety issues.
Section 15(b) of the CPSA requires manufacturers, importers, and distributors (and their individual directors, officers, and agents) to report “immediately” to the CPSC information that reasonably supports the conclusion that a consumer product contains a defect that could create a substantial product hazard or creates an unreasonable risk of serious injury or death. The defendants allegedly knew of the reporting obligations under the CPSC, but not only failed to report the incidents to the CPSC as required, but made affirmative representations to the CPSC that the humidifiers were not defective and hazardous. In addition, Chu and Loh continued to sell these products for at least six months, and provided retailers with false certifications that the products met safety standards.
Even though the government touts this case as the “First-Ever Criminal Prosecution for Failure to Report” under the CPSA, the allegations describe much broader criminality of lies and cover-ups. Indeed, although the manufacturer companies are unnamed in the indictment, it appears they are the same companies that agreed to settle with the CPSC a few years ago for the same conduct. The $15.4 million paid by Gree Electric Appliances Inc., of Zhuhai, China; Hong Kong Gree Electric Appliances Sales Co. Ltd., of Hong Kong; and Gree USA Sales Ltd., of City of Industry, Calif., was the highest civil penalty ever imposed under the CPSA. As part of the settlement, these companies agreed to “implement and maintain a compliance program designed to ensure compliance with the CPSA and regulations enforced by the Commission with respect to any consumer product manufactured, imported, distributed, or sold by Gree,” which included a variety of compliance provisions related to reporting.
So perhaps this case is not as ground-breaking as advertised given the full story. Nevertheless, it serves as a useful reminder to company executives that the risk of criminal exposure is real.